Opinion
5331 Index 305509/14
01-02-2018
Darryls RAWLS, Plaintiff–Respondent, v. David SIMON, et al., Defendants–Appellants.
Rivkin Radler LLP, Uniondale (Stuart M. Bodoff of counsel), for appellants. Diamond & Diamond, Brooklyn (Stuart Diamond of counsel), for respondent.
Rivkin Radler LLP, Uniondale (Stuart M. Bodoff of counsel), for appellants.
Diamond & Diamond, Brooklyn (Stuart Diamond of counsel), for respondent.
Manzanet–Daniels, J.P., Mazzarelli, Andrias, Gesmer, Oing, JJ.
Order, Supreme Court, Bronx County (Kenneth L. Thompson, Jr., J.), entered on or about February 22, 2017, which denied defendants' motion for summary judgment dismissing the complaint, unanimously affirmed, without costs.
Triable issues of fact exist in this action where plaintiff pedestrian was struck by defendants' vehicle. The record shows that the parties disagree about where the accident occurred with plaintiff asserting that he emerged from the back of a bus, raising an issue as to whether defendant driver had an opportunity to see him prior to the collision, whereas defendant maintains that plaintiff stepped out from in front of the bus, giving him no time to react. Moreover, defendant testified that he was traveling between 25 and 27 miles per hour at the time of the impact, but given that the front of the bus, by his own testimony, was 2½ car lengths from a red light, issues of fact exist as to whether defendant was traveling at an excessive speed, and whether he would have had time to react had he been traveling at a slower speed as he approached the light (see e.g. Gelster v. Jaoude, 81 A.D.3d 1297, 916 N.Y.S.2d 550 [4th Dept. 2011] ; compare DeJesus v. Alba, 63 A.D.3d 460, 882 N.Y.S.2d 12 [1st Dept. 2009], affd 14 N.Y.3d 860, 902 N.Y.S.2d 27, 928 N.E.2d 409 [2010] ). Such conflicting versions of how the accident occurred raise credibility issues, and "[i]t is not the court's function on a motion for summary judgment to assess credibility" ( Ferrante v. American Lung Assn., 90 N.Y.2d 623, 631, 665 N.Y.S.2d 25, 687 N.E.2d 1308 [1997] ).